Portland, Oregon’s new “ban the box” ordinance went into effect on July 1, 2016.  We blogged about Oregon’s statewide “ban the box” law here.  Portland’s new ordinance is more restrictive and prohibits covered employers from conducting criminal background checks until after a conditional job offer is made.  Detailed information about the new ordinance is available here.

Are You a Covered Employer?

The Portland ordinance applies to private companies that have six or more employees, with at least one employee who spends a majority of his or her time working within the City of Portland.

You are completely exempt from the law if:

1. You have fewer than six employees;
2. Federal, state, or local law requires you to consider an applicant’s criminal history;
3. You are a law enforcement agency or part of the criminal justice system; or
4. You are seeking a nonemployee volunteer.

You are excepted from the law’s timing restriction and may consider an applicant’s criminal history at any point during the hiring process if the position you are hiring for:

1. Involves direct access or provision of services to children, the elderly, persons with disabilities, persons with mental illness, or individuals with alcohol and drug dependence or substance abuse disorders;
2. Has been determined by administrative rule to present public safety concerns or a business necessity; or
3. Is designated as part of a federal, state, or local government program designed to encourage the employment of applicants with criminal backgrounds.

If You Are a Covered Employer Without an Exception, What Do You Do?

If you are a covered employer without an exception, you cannot ask about criminal history on a job application or during the interview process, or run a criminal background check before making a conditional job offer.

This means that you need to review your job applications to ensure that all questions about criminal history are removed (if you haven’t already “banned the box” under the Oregon law), make sure your hiring managers know that criminal history should not be discussed during an interview, and delay the timing of your criminal background checks until after a conditional offer is made.

For covered employers, criminal background checks should now be conducted post-offer, with job offers conditional on passing a criminal background check.  If an applicant has a job-related criminal conviction, you can rescind the conditional offer after considering the nature and gravity of the conviction, the time that has elapsed since the conviction, and the nature of the job.  You cannot rescind a conditional offer based on arrests not leading to a conviction (except where a crime is unresolved or charges are currently pending), convictions that have been judicially voided or expunged, or nonviolent charges that were resolved through the completion of a diversion or deferred entry of judgment program.

If you choose to rescind the conditional offer, you must notify the applicant in writing and identify the relevant criminal conviction on which the decision is based.